In Part One and Part Two of this study, Dr. Kahf has elaborated the kinds and objectives of Waqf in Islam, and the role of Waqf in sustaining economic Development. In Part Three, he tackles the necessary reforms to enable the Islamic waqf play its role in sustaining economic and social development.
Reforms Enabling Waqf Sustain Economic and Social Development
This recent interest in Awqaf represents a reversal of a trend of neglect and even attacks that continued for almost a century in most Muslim countries. It is also one facet of the Islamic revival in Muslim countries and communities. Rediscovering Awqaf and attempting to enhance their role in the social welfare of the Ummah and in stimulating and sustaining its economic development require us to pay sufficient attention to important issues that are prerequisites for any effective reform of Awqaf.
Required reforms must center in two main areas; managerial and legislative.
Reforming the Management of Awqaf
It does not take a gifted genius to ascertain that the perception of Islamic Awqaf as a part of the public sector is completely incorrect. The creation of a waqf by any founder is certainly not an invitation to government authority to dominate the area of benevolent activities in the society. Studying the history and Fiqh of Awqaf as developed throughout centuries and looking into the Shari`ah rulings and Fatawa issued in various Muslim cities and countries indicate exactly opposite. From its beginning, the establishment of Awqaf was a clear representation of creating a third philanthropic sector that is kept away from both the profit-motive of individuals and the authority-dominated governments. `Umar ibn Al-Khattab, during his reign as a khalifah, wrote the document of his famous Waqf, which is considered the main source of Fiqh on the issue. He appointed himself a manager, and after him a person from his family not his successor in khilafa.
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It seems that the first attempt by the government to manipulate Awqaf took place during the period of Mamluks, at the time of Al-Zahir Bebars in Cairo. This attempt was received with extreme negativity and opposition by faqhis and other Muslim scholars. It was withdrawn! The miraculous change came in our era where we find Awqaf properties in almost every Muslim country run and managed by a branch of the central government. Hence, instead of having a strong third sector, independent of both the profit-making motivation and the power of the government, we ended up with an Awqaf that works under the arm of a corrupt and inefficient public sector! This change began with the Ottoman Awqaf law in the mid nineteenth century as an over-reactionary response to prevalent corruption, neglect abuse and mistrust that enveloped a great majority of Awqaf managers.
Yet, the Ottoman Awqaf law was only a first step because it neither transferred all Awqaf management to the hands of government nor eliminated the private Awqaf. During the first half of the twentieth century Awqaf laws were issued in almost all Muslim countries and in several communities. These laws established a branch of government, called “Ministry of Awqaf” or “General Directorate of Awqaf” to manage Awqaf properties the same way other branches of the public sector are managed.
Everybody knows that government is a bad manager of economic enterprises; it is also a worst manager of benevolent projects. Awqaf properties, whether used directly for their own objective or invested and their revenues are spent to promote their objectives, are merely properties that belong to economic/benevolent activities in the society that must be managed by a benevolent sector not a government.
|In the Islamic legal system, Awqaf makes an early version of the concept of a modern corporation.|
Attempts are taking place in some Muslim countries to reform the management of Awqaf. In Sudan, 1987, Awqaf were reorganized under a new “Public Corporation of Awqaf”. This was followed by Kuwait that created in 1993 a “General Secretariat of Awqaf” as an autonomous, but governmental, body to manage the Awqaf. Qatar also remodeled its ministry of Awqaf along similar lines. Unfortunately, all these reforms could not touch the real problem; hence, solutions suggested were only cosmetics and represent mere changes of hands, a kind of intergeneration struggle, rather than a change in the concept of management.
In the Islamic legal system, Awqaf makes an early version of the concept of a modern corporation. While economic corporations are no more than funds utilized to generate profits to their owners, Awqaf properties are funds utilized for the benefit of their beneficiaries. There are numerous indications, at least from existing or surviving Awqaf documents, that founders always tended to nominate managers from their own vicinity or the vicinity of the property. Once we decide to respect the conditions of founders and avoid the government as a Nazir, it can be established on the basis of all existing documents that the intention of founders has always been in the direction of appointing local private managers rather than central governments or their local branches.
Hence, in fulfillment of the will of founders, and in respect of the distinctive nature of the third sector and the non-profit nature of Awqaf, and in recognition of the outrageous failure of governments in managing economic and benevolent enterprises, and in realization of the need for distinguishing the style of management of Awqaf from that of profit-motivated private-interest-seeking enterprises, the Awqaf management should be run by local people who relate to the beneficiaries of Awqaf as well as to the community in which the Awqaf properties represent an infrastructure capital for social welfare work and interests.
|We have many precedents and supporting texts from the Hadith for a considerable lift in the Fiqh of Waqf.|
The management that is needed for Awqaf is one which is similar to that of economic corporations provided we can find a way to motivate this management to relate to the interests of beneficiaries and local community. This can be achieved by the following scheme:
1. Creating boards of supervision that consists of representatives of beneficiaries, working staff in Awqaf projects and properties and local community and NGOs;
2. Establishing criteria and measures of managerial efficiency in non profit corporations that are applicable to the variety of properties and objectives of Awqaf;
3. Auctioning the management of Awqaf on competitive ground for a definite period of time, say 3-5 years;
4. Creating a government supportive body that may provide technical assistance, facilitate financing, and establish necessary governance regulations.
Reconstructing the Fiqh of Awqaf
The Islamic Fiqh is very rich and we have many precedents and supporting texts from the Hadith for a considerable lift in the Fiqh of Waqf. To begin with the very concept of continuous charity “Sadaqah Jariyah” is accommodative to a great variety of acts of benevolence. In addition to this basic concept, the Qur'an mentions cooperation in good deeds and lending personal and household properties; the Sunnah also mentions grants of usufructs for life “Al-‘Umra,” grants of flow of milk “Al-Manihah” and temporary grants of land for cultivation and farming. Furthermore, there are examples in the Sunnah of making properties that have short productive life as Waqf such as a sword or a horse; and a reference that a reward shall be given by God for a continuous charity “as long as it remains running” which implies that its running may come to an end.
Perpetual and Temporary Waqf
What is needed is a revision of the Fiqh of Waqf to accommodate two types of Waqf: perpetual and temporary. In perpetual Waqf, three conditions must simultaneously be satisfied:
1) A property made into perpetual Waqf must be suitable for perpetuity either by its nature, or its legal status, or its accounting treatment. Land is the only property that is perpetual by its nature. Perpetuity of a property can be created by legal formulation through the concept of equity in common stock companies. Also accounting procedures may turn a given property perpetual through the application of a provision for capital replenishment or amortization.
2) There must be a clear will for perpetuity on the part of the Waqf founder. A perpetual Waqf requires an explicit or implicit expression of will by the founder. Even Malikites, who are usually liberal on temporality, rule that a founder’s will for temporality is discarded in the Waqf for mosques except when the building itself is rented by the founder and (s)he makes the Waqf for the period of the lease.1 This seems to grossly infringe on personal will and property rights of the founder without any legal or Shari`ah support. Apparently, all schools of Fiqh, including the Malikites (with respect to temporality in mosque Waqf), did not anticipate cases in which there are real needs for temporary Waqf in general as well as in mosques in particular.2
3) The objective of Waqf must be perpetual. Here also, jurists overlook the temporary nature of certain objectives and divert any Waqf whose objective is temporary to other objectives. They talk about possibility of lack of existence of assigned beneficiaries at the beginning, in the middle, or at the end of life Waqf and they treat these cases in ways that finally fall under either annulling the Waqf that has a non-existent objective or transforming it into the general objective of poor and needy on the assumption that there is always need for such an objective.
The importance of the principle of perpetuity in Shari`ah should be looked at in the light of the need, in all societies, to establish revenues/services generating permanent assets devoted to social/benevolent objectives. In other words, the perpetuity in Waqf provides for capital accumulation in the third sector that, over time, builds necessary infrastructure for providing social services on a non-for-profit basis. Hence, perpetuity in Waqf accounts for the accumulation of assets in the non-profit sector which is a first and necessary step for the growth of this sector in contrast with the profit-motivated sector and the government sector that is built on authority and law enforcement.
Hence, it must be noted that perpetuity in Waqf remains the rule and temporality the exception. We go along with the majority of jurists who consider the Waqf essentially perpetual, and we believe that temporality in Waqf requires an explicit expression in the founder’s will, the nature of the property or the definition of the objective.
The principle of perpetuity is protected in Shari`ah by a series of rulings including the prohibition of disposition of the Waqf asset through sale and other contracts and the transfer of Waqf revenues from one objective to another, should the assigned objective ceases to exist, so that the property remains in the domain of Waqf.
However, adequate attention must also be given to the importance of temporality. In this regard, we must notice that all jurists, with no exception, approve of temporality of Waqf if it comes from the nature of the assets. Regardless of the justification given in different schools of jurists, Waqf of buildings, trees, horses, books, swords, etc. is accepted. They did not consider this Waqf as non-perpetual on the claim that this is a Waqf for the lifetime of the asset itself, i.e., in such kinds of property, perpetuity is given a non-perpetual meaning! The Malikites accept temporary Waqf by the will of the founder. They also accept the Waqf of usufructs, which is by definition temporary too. Contemporary experiences of Muslim societies and communities indicate that temporality by will of the founder and by nature of objectives is part of social life as all societies need it as much as they need perpetuity.
Muslim jurists should reconsider this principle in terms of the basic distinction between Waqf and ordinary Sadaqah. If one looks at the sayings of the Prophet (pbuh) about Waqf, one important characteristic can be derived. This is the characteristic of repetitiveness; that is, a Waqf is distinct from ordinary Sadaqah by its repetitiveness, i.e., the repeatability of the benefits that come out of it. Therefore, any form of Sadaqah that makes repeated payments to its objectives/beneficiaries is a Sadaqah Jariah (continuous charity): a Waqf.
This “running” feature of Waqf can be manifested in different forms. It may be shown in terms of pledging the income/usufruct of an asset for a period of time at the end of which the asset and its income/usufruct return to the founder. It can be manifested in terms of distributing both income and parts of the asset over repeated installments to the beneficiaries hence temporality comes from depletion of the asset. It can also be manifested in terms of pledging a part of the flow of income/services of an asset (like a company or a factory) that produces a repetitive flow of income or services without pledging the asset itself, or in terms of a right granted to the beneficiary to receive periodically, at repeated intervals or when needed, a flow of mobile objects/usufructs. All are forms of Waqf and there is no rationale for excluding any of them from being a Waqf without valid evidence or support from original Texts.3
Waqf of Usufruct and Financial Rights
Waqf of usufruct is known only in the Maliki School; other schools discard it. Contemporary life has many forms of usufructs that can be made into Waqf such as driving a car on a toll way, passing through a toll tunnel or bridge or using a parking lot for two hours for the Eid prayers twice a year. These kinds of Waqf need to be recognized by the contemporary Fiqh as well as by the laws of Awqaf in the Muslim countries and communities.
Most laws of Awqaf, including those in Algeria, Jordan, Sudan and India do not make any reference to the Waqf of Manafi’ (usufructs). The recently proposed law of Waqf in Kuwait recognizes both temporality and usufruct in Waqf. It is still lingering between the government and parliamentary committees. (Editor's note: The paper is dated January 2003)
Financial rights are also not usually recognized in Waqf by jurists and laws. Modern life has many kinds of these rights, some of them were known in the past but were not of much value. For instance, although authorship rights are non-transferable (because transferring them makes a lie) the right to publish and financially exploit the product of an author has become an important business in our days. Patents and other talent rights are also important new dimensions in contemporary life. These rights are not dealt with in our classical Fiqh, so is the Waqf of objects that have a repetitive character such as newspapers, magazines, and other periodicals. Similar are the products of film companies, educational software programs, and many other intangible properties. All such rights and objects must be covered in the Awqaf principle.
Under the existing Fiqh and laws of Awqaf in the Muslim countries, one cannot, for instance, make a Waqf of a ten-year subscription to the American Economic Review to the benefit of a university library. It’s true that civil laws in all these countries consider such an act as a donation but the laws of Awqaf must give it privileges similar to those granted to other types of Awqaf.
Public and Private Waqf
Public Waqf is that which serves an objective of interest to the whole society or a part of it. Its examples are Awqaf for mosques, schools, orphanages, scientific research, the poor and needy, travelers, etc. Private Waqf is a Waqf in which the beneficiaries are either specific persons or persons characterized by certain relations to the founder or any other specific person. The most common type of this Waqf is Waqf for the descendants of the founder. That is why this kind of Waqf is usually called family or posterity Waqf.
|The solution to the corruption problem is not in eliminating such a benevolent institution but in redesigning its management.|
Posterity Waqf is a pure invention of Muslims. As mentioned earlier, it was created when the Companions of the Prophet (peace and blessings be upon him), en mass, started making Awqaf following the footsteps of the second khalifa, `Umar Bin Al-Khattab, and they added clauses in their Waqf documents to the effect that the first or major beneficiary of the Waqf should be the descendants of the founder.
The private Waqf always has a spillover to public Waqf since all private Waqf always have a clause assigning either a fraction of the revenues to a public cause or converting the private Waqf, all of it, to a public cause in case the assigned beneficiaries cease to exist. Al-Shafi’i in his “Al-Umm” gave two empirical examples of private Waqf, one of them was a Waqf he founded for his own son Abu al-Hassan, who was born in Egypt. In both, the Waqf becomes to the poor and needy after its private objective ceases to exist.
In several Muslim countries, private Waqf came under heavy attack from some disciples of Western orientalists who criticized this type of Waqf in the late 1800s. Several Muslim countries enacted laws that liquidate existing private Waqf and prevented establishing new ones as it happened in Egypt and Syria. Lebanon limited the private Waqf to two generations only, after which a private Waqf is liquidated. These attacks were rightly justified by the huge amount of corruption that dominated handling Awqaf all over the Muslim world but there was no reason for any discrimination between private and public Awqaf on the basis of corruption. The fact is that the management of both types of Awqaf was corrupt and most Awqaf properties were either already stolen or very much abused. The solution to the corruption problem is not in eliminating such a benevolent institution but in redesigning its management, as we discussed in the preceding section.
The private Waqf in fact serves an important social objective. Properties left to posterity help provide additional income to descendants of the founder. They also help keep them off social welfare and Zakah recipient lists while, at the same time, such properties provide for a mechanism of capital accumulation through generations which is an important way for growth and development: a fact that was only recognized in the Western countries, especially the United States, over the past few decades where the use of family trusts under different variants became very common and these trusts were encouraged and given tax privileges. Moreover, it is known in Islamic Fiqh that any Waqf whose beneficiaries cease to exist turns into a Waqf for the poor and needy as this is considered a primary and default objective of the institution of Awqaf itself.
Both Fiqh and laws in Muslim countries should have dealt with the problems of corruption, fragmentation of beneficiaries and cost of locating beneficiaries in relation to the revenues in a more dynamic way that allows for the promotion of private Waqf and for turning it into a Waqf for the poor and needy over time instead of looking at it in a negative way.
The Ownership of Awqaf and its Legal Entity
The differences of opinions among Muslim scholars on who owns Awqaf properties are well known. An interesting fact is dictated by these differences, that is: ownership of Awqaf was really puzzling Muslim scholars at a time when the concept of legal entity or legal personality, outside natural persons, was not yet developed. Contemporary Awqaf laws in Muslim countries and communities quickly assign a legal personality to Awqaf and consider Awqaf properties owned by that legal entity.
In fact, there are many Awqaf-type properties that fall outside the Awqaf laws in all Muslim countries, simply because they come under the acts of non-profit organizations, be they educational, charitable, social, or otherwise. The laws of non profit organizations in the Muslim countries assign to an organization a legal entity that allows it to own both mobile and immobile properties. Many of these properties are certainly given to the organization on the basis of forming permanent capital to be used for servicing the objective of the organization, say a school building, or as a permanent source of income to the organization, as investments that generate revenues. These properties are in fact nothing but Awqaf.
The concept of legal entity, corporation, is a Western one which was developed in Western Europe and the United States over the last three centuries or a little more. A legal entity has its independent financial status. It also has the right to litigate and to be represented as well as to represent others. There are many voices among law scholars that also call for a legal entity to be covered by criminal laws so that it can be put under guardianship, fined, and even eliminated. Contemporary Muslim jurists usually accept this new concept of legal entity or corporation and include it in their studies and rulings.
It has always been argued that the concept of Waqf comes very close to a manifestation of a legal entity, as it has separate and independent financial personality (Thimmah) of its own, completely not intermingled with that of its manager. The manager (Nazir) is only a representative of the Waqf and the relationships between them are very well elaborated in Fiqh.
It is rarely questioned whether the concept of corporation and its legal entity does really suit the exact size of Awqaf. While the management of a corporation, with proper authorization from its constituency, the general assembly, can dispose of the assets of the corporation through sale, gift, and other ownership transfer transactions; it can also liquidate the corporation and do away with all of its properties, the managers of Awqaf are very restricted. In Awqaf, properties are not considered owned by any human entity, individually or in groups, be it natural or judiciary. They cannot even give any of the Waqf income to any philanthropic objective outside the assigned one. Many classical scholars consider Allah the owner of Awqaf, and obviously no one dares attribute to Him such kinds of transactions.
The important conclusion is that Awqaf properties require a special kind of judiciary person, or an amended legal entity which, unlike corporations, does not have a full right of ownership. Rather, it only holds title, maintains continuity of property, manages investment and distributes to objectives/beneficiaries but it cannot dispose of the properties or violate the distribution ordinances of the founder. In other words, the legal entity of Awqaf should be allowed only to undertake certain contracts and legal actions; those which relate to investment of assets and distribution of income and usufructs; but it should not be allowed to take up other kinds of contracts and legal actions that infringe on the principle of perpetuity, continuous growth and accumulation and the distribution of benefits or usufruct.
The managers of Awqaf are thus not similar to managers of corporations in the scope of their authority. The dilemma of Awqaf properties placed under the authority of judiciary entities of non-profit organizations, is exemplary. Awqaf under non-profit organizations can be liquidated, sold, and disposed of by actions within the scope of the proper authority of the management of these organizations.
As a result of this confusion between Awqaf, corporations, and judiciary entities, the Awqaf properties of Muslim communities in many countries live under continuous threat of mishandling the property itself, let alone its usufruct or income. Properties of Awqaf, including mosques, schools, and other properties assigned for the Muslim community use in the United States, Canada, most European countries, Australia and South Africa are subject to all kinds of ownership-transfer contracts by the management, as well as to litigation by others for actions, or lack of actions, of the corporation’s managers. The management of such properties can mortgage them or use them as a lien for borrowing which exposes these properties to be repossessed by lenders. Managers can sell these properties and make all other disposal transactions. These properties can be liquidated by legal action against them that is merely a result of neglect of the managers. The corporations, in whose form the organizations that own these properties appear, are always vulnerable to litigation that threaten the public character of Awqaf itself in all those countries.
Special Conditions of the Waqf Founder
|A Waqif would be very encouraged to make a Waqf if (s)he is assured that should (s)he need the Waqf funds at the time of retirement, old age, sickness or otherwise, (s)he can be a prime beneficiary of her own Waqf.|
Our classical Fiqh adopts a slogan, which over time became very famous: “Conditions of the Waqif are similar to texts of the Legislator.” This indicates the great value attached to the conditions of the Waqf founder in our Fiqh.
Yet we find that Fuqaha’ very often deviate from the spirit of this slogan and impose violations and disrespect of some of the conditions of the Waqif. For instance, the prevailing view in our classical Fiqh, especially the Maliki and the Hanbali, is that the Waqif is not permitted to make himself a beneficiary of the Waqf. This is on a presumption that making one’s own self a beneficiary contradicts the benevolent character of Waqf, as if the Prophet (peace and blessings be upon him) did not consider making Birr to one’s own self a priority over all actions of Birr! Another area where the conditions of the Waqif are not respected is the Waqif’s right to terminate the Waqf and retrieve its property to her/himself. This right is not accepted by all jurists except Abu Hanifah, provided that the Waqf did not, in the meanwhile, gain perpetuity through a judicial action.4
A third example where conditions of the Waqf founder are not respected is where the objective of the Waqf comes to an end at a certain point of time and at the same time the Waqif makes her/his Waqf in such a way that its principal ceases to exist. An easy example of that is supporting an orphan until maturity.
In contemporary life, which is full with uncertainty and unpredictability about the future as well as with laxity of family and tribal mutual financial solidarity, these three types of conditions become of great importance to the Waqf founder. A Waqif would be very encouraged to make a Waqf if (s)he is assured that should (s)he need the Waqf funds at the time of retirement, old age, sickness or otherwise, (s)he can be a prime beneficiary of her own Waqf, or (s)he can reverse the action and come back to own and use the Waqf assets and/or income. Additionally, allowing a Waqf property to be winded up after fulfilling its objective encourages making Waqf because it has a lower sacrifice to the Waqif. For instance, a one Thousand Dinar ten-year annuity with the depletion of its principal requires half the amount of principal needed at a seven percent expected rate of return, should the principal remain perpetual.
Contemporary Fiqh and laws of Awqaf in Muslim countries and communities must re-address the issue of the special conditions of the Waqf founder in order to recognize the implications of the new reality of uncertainty and unpredictability about future income and future financial needs, especially in three areas of: the condition of benefiting the Waqif from her/his Waqf and its income, the right to reverse the decision of making Waqf, and the right to make a Waqf that lapses with the lapse of its objective. It is noted that practices in some Muslim countries accept the condition of self-beneficiary as I found in actual new Waqf documents created in Jordan and Saudi Arabia. The proposed new Act of Awqaf in Kuwait allows for the Waqif to reverse her/his decision on creating a Waqf.
The Islamic system of Awqaf revolutionizes the non profit sector and its role in social welfare. It creates a permanent, cumulative and ever-increasing capital base that sustains growth and expands the scope of benevolent activities (notice: this is in addition to Zakah that provides for current distributions of the non-profit sector). It carries the functions of benevolence to reach out all areas of social welfare even sectors many contemporary economists and political sociologists consider as a part of the domain and responsibility of governments such as health, education and defense. After more than half a century of looking up to governments to run these sectors, we came to realize that governments are not the best managers to run these services. The solution lies in Awqaf not in the private sector that is motivated by profit.
To activate and vitalize the Awqaf system in the Muslim societies and communities there is a dire need for reform in its management formulas and to revise our classical Fiqh in areas that help promote the establishment of new Awqaf and improve the benefits derived from existing ones. It should be noted that the Muslim societies and communities in many areas of the world are rich in their inherited Awqaf properties, if we can only improve their capital benefit ratios.
1 It must be noted here that temporality in a Waqf by a lessee is caused by the nature of the property not by the will of the founder.
2 All Muslim communities today may, one way or another, need a temporary mosque for certain period of time either because of mobility of Muslim communities in Europe and the Americas or because of the long period needed for building mosques, for collection of donations or for construction.
3 In a similar case with regards to Ijarah, Ibn Taymiah considers as a valid Ijarah renting an asset that produces repeated mobile objects rather than usufruct. The example he gives is renting a well for its water and hiring a nursing woman for the milk she provides to a newborn baby.
4 This is not a ruling on Waqf on the part of Abu Hanifah but because he does not recognize a waqf before it gains a judicial decision.
Publications benefited from in writing this paper
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4. Basar, Hasmat, ed. Management and development of Awqaf Properties, IRTI, Jeddah 1987.
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6. Bu Jalal, Muhammad "Nahwa Syiaghah Mu'assasiyyah li Al-Dawr Al-Tanmawi li Al-Waqf" [Toward an Institutional Formulation of the Developmental Role of Waqf], unpublished paper, General Secretariat of Awqaf in Kuwait, September 1996.
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11. Al-Siba`i, Mustafa, "Min Rawa'i` Hadaratina", al Maktab al Islami, Beirut 1969.
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13. Zarqa, Mustafa, "Ahkam Al-Awqaf" [Shari`ah rules of Awqaf], Damascus University Press, Damascus 1947.
14. Abu Zahra, Muhammad, "Muhadarat fi Al-Waqf" [lectures on Waqf], Dar Al-Fikr Al- ‘Arabi, Cairo 1971.
15. Yagan, Zuhdi, "Al-Waqf fi Al-Shari`h Al-Islamiyyah wa Al-Qanun", Dar Al-Nahdah Al-‘Arabiyyah, Beirut 1388 H.
16. Encyclopedia Americana, 1994, V 7, 8 and 27.
17. The New Encyclopedia Britannica, 1995, V 3.
Related Links:Kinds and Objectives of Islamic Waqf
Waqf and Sustaining Economic Development